S.Meenakshi Sundaram v. The Joint Registrar of Co-operative Societies, Pudukottai Region, Pudukottai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.02.2009CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.26867 of 2006S.Meenakshi Sundaram..Petitionervs.1. The Joint Registrar of Co-operative Societies, Pudukottai Region, Pudukottai.2. The Deputy Registrar of Co-operative Societies, Pudukottai... RespondentsPetition praying to issue Writ of Certiorarified Mandamus to callfor the records of the first respondent in Rc.No.11522/94/A1 dated28.4.97 imposing the punishment on the applicant of removal fromservice, quash the same and to direct the respondents to reinstatethe petitioner as Co-operative Sub Registrar with all servicebenefits.For Petitioner :Mr.S.VadiveluFor Respondents :Mrs.Sneha, G.A.O R D E RThe petitioner filed Original Application No.3608 of 1997challenging the order dated 28.4.1997 by which he was removed fromservice.2. Admittedly, the petitioner was appointed on 6.3.1969 andlater, promoted as Senior Inspector of Co-operative Societies on20.10.1973. He was also promoted as a Co-operative Sub Registrar on9.10.1990. At the relevant time, since the Board of Directors ofvarious societies were superseded, the petitioner was made as aSpecial Officer in charge of various societies. When the petitionerwas discharging the duties of the Special Officer, a charge memo wasgranted under Rule 17(b) of the Tamil Nadu Civil Service(Disciplinary and Appeal) Rules. The charges against the petitionerwas that he has given effect to the settlements signed under Section18(1) or 12(3) of the Industrial Disputes Act (in short 'I.D. Act')without regard to the claims and financial position of the co- https://hcservices.ecourts.gov.in/hcservices/ operative societies and those settlements were fraudulently signed bythe erstwhile Board of Directors and the petitioner did not take anysteps in overruling the said settlements. On the contrary, heactively implemented the said settlements, thereby acted contrary tothe circular issued by the Department. By his action, substantialamounts were paid to the employees and the societies were in a badfinancial condition.3.The defence taken by the petitioner was that the settlementsunder Section 12(3) or 18(1) of the I.D. Act cannot be overruledunilaterally by the Board or by the Special Officer unless it ismodified in the manner known to law. Being an officer in charge ofthe societies, he is bound to give effect to the settlements. Anyfailure on his part would have resulted in a prosecution launched bythe State under Section 29 of the I.D. Act. Alternatively, hesubmitted that there is no allegation that he had made any cut, outof the funds spent on the employees and there is no financialimpropriety or misappropriation on his part.4.After conducting an enquiry, the petitioner was removed fromservice by the order of the second respondent dated 28.4.1997. Thepetitioner immediately thereafter moved the State AdministrativeTribunal and filed the original application. Despite notice to therespondents, they have not filed any reply to the case filed by thepetitioner. Since the Tribunal was abolished, the matter stoodtransferred to this Court and was re-numbered as W.P.No.26867 of 2006.5.Mr.S.Vadivelu, learned counsel for the petitioner submittedthat the petitioner acted bona fide in giving effect to thesettlements and he cannot be penalised for doing a lawful thing. Healso submitted that at the relevant point of time, a Division Benchof this Court in Tiruchirapalli Hiruthayapuram Co-operative BankEmployees Union vs. Joint Registrar of Co-operative Societiesreported in 1992 (2) L.L.J. 747, held that a settlement under Section12(3) or 18(1) of the I.D. Act cannot be nullified by the unilateralaction of the Registrar and therefore, the petitioner cannot be foundfault with the action taken by him. He also contended that he wasnot the author of the said settlements, but the settlements weresigned by the then Board of Directors and he merely implemented thesaid settlements. Alternatively, he submitted that the petitionerhaving put in more than 27 years of service, the order of removal ishighly disproportionate and it has the effect of depriving even theterminal benefits in spite of his long service. He also submittedthat the petitioner has not committed any misconduct and his trackrecord was clear.6.Taking the first submission that the petitioner acted bona fidein giving effect to the settlements and that a Division Bench of thisCourt had given sanctity to such an action cannot be countenanced bythis Court. The said Division Bench judgment was rendered in the https://hcservices.ecourts.gov.in/hcservices/ context of the Co-operative Societies Act, 1961 and it did not dealwith the new Tamil Nadu Co-operative Societies Act, 1983, which wasbrought into effect from 1.4.1988. When a question came up forconsideration before this Court in Justine, L. v. The Registrar ofCo-operative Societies, Chennai, reported in 2002 (4) C.T.C. 385, inparagraph 19(vii), the Division Bench observed as follows:-"19.(vii) that either the provisions of Tamil NaduIndustrial Establishments (Conferment of Permanent Statusto Workmen) Act, 1981 or the Industrial Disputes Act, 1947,or the settlements entered under sections 12 or 18 thereof,shall have no application to the staff of the co-operativesocieties appointed without adequate qualifications orbeyond the cadre strength for the period from 9.7.1980 to11.3.2001. This is equally applicable to the staffappointed to the cooperative societies, otherwise thanthrough employment exchange, for the period from 12.3.2001onwards."The said decision was also taken before the Supreme Court and theSupreme Court upheld the decision of the Division Bench in A.Umaranivs. Registrar of Co-operative Societies [(2004) 7 SCC 112]. 7.Subsequent to the aforesaid decisions, the very same questioncame up before this Court as to whether the Registrar has power todirect the Co-operative societies to cancel a settlement signed underSection 18(1) or 12(3) of the I.D. Act and whether the earlierdecision of the Supreme Court in the case of TiruchirapalliHiruthayapuram Co-operative Bank Employees Union vs. JointRegistrar of Co-operative Societies, cited supra, was correct, wasconsidered by another Division Bench in T.N.V.K.V.V.S.A.P.MadyaSangam v. Dy. Registrar of Co-op. Socy. (2008 (2) L.L.N. 236). TheDivision Bench held in paragraphs 14, 15 and 16 as follows:-"14. In fact, Rule 149 of the Rules 1988 came intobeing by way of G.O.Ms.No.212, dated 4 January, 1997, i.e.,after the pronouncement of the Division Bench decisionreported in Tiruchirapalli Hiruthayapuram Co-operative BankEmployees Union, v. Joint Registrar of Co-operativeSocieties, Tiruchirapalli (vide supra). On the basis ofthe judgment of the earlier Division Bench, the StateGovernment in order to restrain the individual societiesentering into such wage settlements without reference tothe viability of the concerned co-operative societiesthought it fit to incorporate the provision in the Rules byintroducing Rule 149.15. By no stretch of imagination, the said Rule can besaid to be either conflicting with the provisions of I.D.Act or introduced with any other ulterior motive to defeatthe lawful rights of the employees of any of the registeredsocieties. The purpose of the Rule is to ensure that aregistered society does not become defunct or unwieldy and https://hcservices.ecourts.gov.in/hcservices/ any of the registered societies should not be allowed to beclosed due to dearth of funds by mismanagement. Therefore,the constitution of the committee for formulating thecommon wage structure for the employees of the registeredco-operative societies by G.O.Ms. No.289, dated 18 December1998, and the subsequent G.O.Ms.No.166, dated 16 August2000, were all in furtherance of the fulfilment of theabove objective of the State Government.16. In the light of the above factors, we are convincedthat the orders impugned in the writ petitions issued bythe first respondent directing the respective co-operativesocieties to cancel the settlements which came to bearrived in contravention of the directions issued by theRegistrar of the Co-operative Societies, dated 16 October1997, issued under S.181 of the Act 1983 by invoking S.166of the Act 1983 are perfectly justified. We are alsoconvinced that the Division Bench decision inTiruchirapalli Hiruthayapuram Co-operative Bank EmployeesUnion, v. Joint Registrar of Co-operative Societies,Tiruchirapalli (vide supra), upon which heavy reliance wasplaced upon by the appellant does not in any way supportthe stand of the appellant. ...."8. Therefore, the legalistic stand taken by the petitioner indefending the charges cannot be countenanced. But, at the same time,it is not as if there is any allegation that he has disobeyed thedirection issued by the Registrar, pursuant to the power vested underRule 149 of the Tamil Nadu Co-operative Society Rules, 1988. Thestand of the petitioner that he has not committed any financialmisappropriation and therefore, he should not be penalised with aheavy punishment merits acceptance. It may be out of place tomention that ever since the case of Tiruchirapalli Hiruthayapuram Co-operative Bank Employees Union, v. Joint Registrar of Co-operativeSocieties, Tiruchirapalli, cited supra, came, there has beendifferent orders passed by this Court and therefore, one cannot blamethe lay persons like the petitioner. The law came to be settled onlyafter the Division Bench's decision in L.Justine's case, cited supra,which was approved by the Supreme Court in Uma Rani's case, citedsupra. Therefore, to penalise the petitioner for having amisunderstanding of the legal position may not be proper. At thesame time, he cannot plead that he has discharged his power bonafide, and had not understood the implication of the new law, underwhich he is administering various societies.9.The second argument of Mr.S.Vadivelu, learned counsel for thepetitioner that punishment given to the petitioner, viz., removalfrom service, after 27 years of service rendered by him without anyprevious bad record, may be disproportionate. Therefore, this Courtis inclined to accept the said submission and convert the order of https://hcservices.ecourts.gov.in/hcservices/ removal into one of compulsory retirement, which is also a majorpunishment under Rule 8 of the Tamil Nadu Civil Service (Disciplinaryand Appeal) Rules.In that view of the matter, the petitioner may beat least entitled to get terminal benefits.10.In view of the same, the impugned order insofar as itsimposition of punishment of removal from service is set aside and therespondents are directed to impose the punishment of compulsoryretirement on the petitioner with effect from 28.4.1997. In view ofthe modification of the punishment, the respondents are directed tosettle the terminal benefits due to the petitioner in accordance withlaw within a period of three months from the date of receipt of acopy of this order. The writ petition is allowed to the extentindicated above. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsraTo1. The Joint Registrar of Co-operative Societies, Pudukottai Region, Pudukottai.2. The Deputy Registrar of Co-operative Societies, Pudukottai.1 cc To The Government Pleader, SR.60371 cc To Mr.S.Vadivelu, Advocate, SR.5768W.P.No.26867 of 2006KJI(CO)SRA(17/02/2009)